Employees use of cellphones while driving becomes a liability for companies

One was a lumber salesman who crippled a 78-year-old woman. Another was driving a toy company’s van when he killed a college sophomore. When a cable company guy rammed a stopped car at 71 mph, a woman and her mother died. A driver in a com­pany car didn’t react when traffic slowed, rear-ending a Honda in a chain-reaction crash that killed a 32-year-old woman.

All four drivers were using their cellphones. At a time when the National Safety Council estimates that about one-quarter of all crashes involve cellphones or texting — about 1.2 million accidents a year — these four crashes had something else in common.

The companies that employed those drivers were sued. Distracted-driving lawsuits now are part of the legal landscape, and the lawyers who bring them are increasingly going after the deep pockets of corporations that let their employees talk or text while behind the wheel.

Juries are making it worth their while: One awarded $21.6 million to the Florida family of the Honda driver.

And a federal magistrate ordered an Alabama trucking company to pay $18 million for an accident that happened when one of its drivers reached for a cellphone.

Many corporations are eager to settle once they discover they are facing lawyers armed with the smoking gun of cellphone records.

The Arkansas lumber company whose salesman crippled the 78-year-old woman paid a $16.1 million settlement.

And International Paper settled for $5.2 million after an employee on a cellphone caused a collision that cost a woman her arm.

Todd Clements, a Texas lawyer who sued the cable company for the accident that killed two women, thinks companies are wise to settle without a jury trial.

“People think there’s a good defense here by saying, ‘Everybody does it,’ ” Clements said. “Well, that’s not true, because the jury doesn’t want everyone to do it. They just want to do it themselves. It’s a huge disconnect.”

Given the opportunity to play the scold, jurors are eager, Clement said, to punish corporations in what amounts to a primal act of self-preservation: By awarding huge amounts of money to plaintiffs, they encourage corporate bans on calling and texting.

Multiplying risks

David Teater, a transportation director at the National Safety Council, recently explored corporate liability in cases involving texting and cellphone use.

“There was a recent poll in California where fear of cellphone driving outranked drunk driving for the first time,” said Teater, whose 12-year-old son was killed by a 20-year-old woman who drove her Hummer through a red light while using a cellphone.

Teater links corporate liability to research that shows drivers using cellphones are four times as likely to be involved in a crash.

“If an employer knew a behavior in some other aspect of the business put employees at four-times-greater risk of injury, would they still expect or even encourage that behavior?” he said. “It’s a huge trend. It’s a real liability for companies, a real risk.”

Whether it’s a company car, a company-issued phone or just an employee making a business call in a private car on a private phone, the corporation is within the reach of a distracted-driving lawyer.

“Cellphone use in a catastrophic case is going to be gasoline on the fire,” said Clements, who wouldn’t reveal the settlement paid by Cable One, a subsidiary of The Washington Post Co. “You’ve just ratcheted up your exposure and the essential value of the case exponentially.”

Many Fortune 500 companies have moved to ban all employee cellphone use while driving. UPS, DuPont, Chevron, CSX, Shell and Time Warner are among them.

When companies with bans were surveyed by the NSC two years ago, 7 percent said productivity had declined after the ban but 19 percent said it had increased.

“There was absolutely concern about that,” said Doug Pontsler, vice president for safety at Owens Corning. “But our position is, quite simply, that we don’t make safety decisions based on productivity.”

After discouraging phone use by drivers for years, Owens Corning implemented a complete ban April 1.

“We found the customer response to be really positive to this,” Pontsler said. “Our people have been very open with our customers about the fact that ‘Hey, I may not be able to answer the call immediately.’ ”

Pontsler and distracted-driving experts agree that the recommendation of a total ban by the National Transportation Safety Board in December was a tipping point for many companies.

Educating the workforce is critical if any policy is going to stand against a later lawsuit, said David Strayer, a University of Utah professor who is a leading researcher on distracted-driving issues.

“It can’t be a wink-wink, nod-nod policy, but in fact one where you really are expected not to use the phone,” Strayer said.

Clements said it’s easy to box in company officials, forcing them to pretend they were unaware of the danger of distracted driving or to admit that they knew the risk and ignored it.

“Then you’re able to use the argument that you knew better but you didn’t do better, and that’s the one that really ticks a jury off,” Clements said. “Any employer who doesn’t believe they’re in a box now is foolish.”

In depositions in the Cable One lawsuit, a company official said: “We don’t think it’s respectful to our associates, or reasonable in this day and age, to ban communication. We trust our associates to have really good judgment, and that’s what our policies are all about.”

Disclosing data

It’s impossible to know just how many crash lawsuits hinge on cellphone use. Since lawyers say the majority of cases are settled with sealed agreements before they reach a jury, there are rarely multimillion-dollar jury awards that make headlines.

Until recently, the science of determining whether a cellphone was in use at the time of impact generally has been sketchy. The time stamp on an accident usually was the moment when someone called police to report it. Especially with text messages, which could just take seconds to exchange, matching message to crash impact is a challenge.

“But with phone records now, I will actually be able to track your phone in motion,” said Paul Atchley, a University of Kansas professor who has been a expert witness in distracted-driving cases. “When suddenly your phone is no longer moving, I know pretty certainly when the crash occurred and if you were talking around the time of the crash.”

Atchley says the on-board computers in all new vehicles will make that task simple.

“It will become much easier, not too far in the future, for an accident investigator to roll up to the scene, put a little device in the data port and pull off all the information they need to know exactly what happened at the time of the crash,” he said.